SCOTUS and the Filibuster Battle

It won’t get much attention because of the very large decisions that are rolling out of the Supreme Court this week, but before releasing its opinions today, the Court decided to involve itself in the highly political battle over presidential appointment powers, the very center of the impending July fight in the Senate over filibuster reform.

Stepping into a constitutional controversy with deep roots in American history, along with major implications for today’s politics, the Supreme Court on Monday agreed to define when the President can act alone to fill vacant government posts. The case of National Labor Relations Board v. Noel Canning (docket 12-1281) is due to be decided in the Court’s next Term.

The specific issue is the scope of the Constitution’s grant of presidential power to put an official temporarily into office without Senate approval – a power that arises when the Senate is not on hand to review that appointment. Answering that could require the Court to define when the Senate, in a legal sense, goes into recess.

The issue goes as far back as recess appointments by George Washington, but it also is as new as the latest partisan jousting between President Obama and Senate Republicans over his appointment power. The gridlock over Obama nominees has threatened to make one government agency – the NLRB – unable to function.

And that’s the issue on which the DC Circuit surprisingly sided with critics of presidential power in May. But as Denniston notes, it is even more immediately relevant:

While the Court will be focusing on constitutional questions, the outcome has real potential for giving either the Senate or the White House real tactical advantages in the ongoing confirmation wars. It could give a resistant Senate a chance to nearly take away the president’s recess appointment authority, or it could give the White House a way to get around filibuster-driven obstruction of nominees.

Now obviously the Court isn’t going to be hearing, much less deciding, the case before the scheduled filibuster fight next month. But if it becomes apparent the Court is intervening on this issue in order to confirm the lower courts’ overturning of the traditional option of recess appointments, then it could have the short-term effect of convincing wavering Senate Democrats that there is no alternative to filibuster reform. Since the impending showdown could very easily come down to one or two such waverers, this could turn out to be a very big deal.